Broadwater's Appeal

I haven't had to write about Broadwater in a while; neither has Newsday but that didn't stop them from publishing a short let's-look-at-where-we-are-in-the-appeal-process story today, the nut grafs of which are:

Houston-based Broadwater still is pursuing regulatory channels in hopes of getting the project permitted. The joint venture between Shell and TransCanada had wanted to have its proposed 1,200-foot-long, 200-foot-wide floating terminal in operation 9.2 miles north of Wading River in 2011.

The company's senior vice president in charge of the project, John Hritcko Jr., said in an interview recently that its appeal of New York's decision, to the U.S. Department of Commerce, is pending, with the federal agency expected to cut off comments by mid-December and make a decision next year.

What Broadwater is appealing, of course, is New York State's decision last spring that the proposal is inconsistent with state policies for use of the coastal area. The appeal route isn't an easy one. Here's how Suffolk County editor-reporter Denise Civiletti explained it back then, comparing it to a proposal to run a natural gas pipeline under the Hudson River:

The secretary of commerce, Carlos Gutierrez, can override the state's consistency ruling if he determines that the Broadwater plan is "consistent with the objectives of the CZMA," or if the project is "necessary in the interest of national security."

In 2003, the commerce secretary rejected the consistency appeal of Millennium Pipeline Company, whose plans, like Broadwater's, had been found inconsistent with New York's coastal management policies by the New York secretary of state. The secretary of commerce refused to override the state's determination, ruling that a project is consistent with the objectives of the CZMA only if it furthers the national interest articulated by Congress in a significant way, and if the national interest outweighs the activities' adverse coastal effects, and there is no reasonable alternative available. "A negative finding for any of the three elements will preclude [the] project from being consistent with the objectives of the CZMA," the commerce secretary wrote. In the Millennium case, he found that there was a reasonable alternative to the proposed project. He also refused to allow the project on the grounds of "national security," saying the record must show that "a specific impairment of a national security interest would result if [the] project were not permitted to go forward as proposed." General statements that the project is important to the national interest are not enough, he ruled.

If Commerce rejects the appeal, Broadwater can go to court, which is what Millennium did. Three years later the state decision was upheld.By that schedule, we can expect a court decision perhaps in 2010.